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Chandmal and ors. Vs. Bachraj Alias Motiram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom474
AppellantChandmal and ors.
RespondentBachraj Alias Motiram
Excerpt:
landlord and tenant - notice to quit--proof of service--publication in newspaper--termination of tenancy--adverse possession--limitation act ix of 1871, schedule ii, article 140. - - the tenancy, not having been determine, continued in 1876. what precisely the nature of the tenancy was, and whether the notice then given was sufficient with reference to the character of the tenancy as monthly or otherwise, are questions on the merits of which the courts below must determine......of a tenancy having existed; and on the single consideration that the alleged notice to the tenant by khubchand is not so proved to have come to the tenant's knowledge--brought so near to his positive personal cognizance--as the law requires to give it effect in determining a tenancy. what appears is that khubchand gave notice to vacate to the defendant, along with several other tenants, by means of an advertisement in the dnyan prakash newspaper. it does not appear that the same from of notice was handed to the defendant, or any member of his household, or that even a copy of the newspaper was sent to the defendant by hand or by post. the defendant's non-recollection of whether any notice reached him, or not, cannot supply the defect of positive testimony bringing the notice home.....
Judgment:

West, J.

1. We think that the case must be disposed of on the assumption of a tenancy having existed; and on the single consideration that the alleged notice to the tenant by Khubchand is not so proved to have come to the tenant's knowledge--brought so near to his positive personal cognizance--as the law requires to give it effect in determining a tenancy. What appears is that Khubchand gave notice to vacate to the defendant, along with Several other tenants, by means of an advertisement in the Dnyan Prakash newspaper. It does not appear that the same from of notice was handed to the defendant, or any member of his household, or that even a copy of the newspaper was sent to the defendant by hand or by post. The defendant's non-recollection of whether any notice reached him, or not, cannot supply the defect of positive testimony bringing the notice home to him. He is certain that Khubchand never personally asked him to vacate, and Khubchand does not say that he did make any such request otherwise than by the advertisement in the newspaper, to which he received no answer. His receiving no answer, if it had any signification at all, implied that the defendant was not acquainted with the advertisement. We think that both reason and authority are against our allowing a mere advertisement in a newspaper to take the place of a notice delivered to tie tenant (or, conversely, to the landlord) in terminating a tenancy The person to be affected must be addressed in a way which leaves no reasonable doubt of his knowledge; otherwise, very serious evils would probably arise.

2. As the tenancy, supposing a tenancy in fact existed, was not terminated in the way intended, and the tenant could not safely have left the premises on a supposition that he could not be charged with further rent, it continued for his benefit at the time, though now, as it has turned out, to his ultimate disadvantage. The tenancy, not having been determine, continued in 1876. What precisely the nature of the tenancy was, and whether the notice then given was sufficient with reference to the character of the tenancy as monthly or otherwise, are questions on the merits of which the Courts below must determine. We reverse the decision that the suit was barred by limitation, and remand the cause for re-trial by the Court of first instance, and disposal on the merits, apart from the question of limitation. The costs of the appeals in this Court and the District Court to be borne by the respondent.


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